Commonwealth v. Coutu ( 2015 )

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08-P-986 Appeals Court
13-P-1363
COMMONWEALTH vs. DAVID COUTU.
Nos. 08-P-986 & 13-P-1363.
Middlesex. September 17, 2015. - December 8, 2015.
Present: Katzmann, Meade, & Rubin, JJ.
Assault and Battery by Means of a Dangerous Weapon. Burning of
Property. Attempt. Evidence, Identification, Scientific
test. Practice, Criminal, Failure to object,
Identification of defendant in courtroom, Argument by
prosecutor, Instructions to jury, New trial, Assistance of
counsel, Collateral estoppel, Postconviction relief.
Collateral Estoppel. Deoxyribonucleic Acid.
Indictments found and returned in the Superior Court
Department on March 23 and August 15, 2006.
The cases were tried before S. Jane Haggerty, J., and
motions for a new trial, for postconviction discovery, and for
reconsideration, filed on April 26, 2012, June 7, 2012, and June
23, 2014, respectively, were heard by her.
Amy M. Belger for the defendant.
Randall F. Maas & Bethany Stevens, Assistant District
Attorneys, for the Commonwealth.
2
MEADE, J. After a jury trial in 2007, the defendant was
convicted of aggravated rape, home invasion, mayhem, assault and
battery by means of a dangerous weapon causing serious bodily
injury, armed robbery, kidnapping, and attempt to burn personal
property. The events leading to these convictions occurred in
2006, when the defendant, a stranger to the victim, broke into
her apartment by tunneling through the wall with a crowbar, and
then beat and raped the victim with the crowbar before burning a
box of items.
On appeal, the defendant claims the judge improperly
permitted the victim to testify that she recognized the
defendant by his "energy," the prosecutor's closing argument was
improper, the judge erred in her jury instruction on
identification, the evidence was insufficient to support the
attempt to burn personal property conviction, the convictions of
assault and battery by means of a dangerous weapon causing
serious bodily injury and mayhem were duplicative, and the judge
abused her discretion by denying the defendant's second motion
for new trial based on a claim of ineffective assistance and
newly discovered evidence. We reverse the convictions of
assault and battery by means of a dangerous weapon causing
serious bodily injury and of attempt to burn personal property,
affirm the remaining judgments of conviction, and remand the
3
case for resentencing. We affirm the order denying the second
motion for new trial.
In a separate appeal, the Commonwealth claims error in the
judge's order permitting postconviction DNA testing under G. L.
c. 278A. The Commonwealth claims that the judge misapplied the
statute and failed to consider the strength of the
Commonwealth's case, and that the defendant did not meet all the
statutory criteria. We affirm the judge's order.
1. Background. a. Emergency response. In the early
morning hours of March 9, 2006, Ayer police and fire personnel
responded to the victim's apartment. The apartment was full of
smoke, which emanated from an object smoldering in the bathtub
that the fire fighters extinguished. The fire fighters found
the victim wrapped in a blanket and curled in the fetal position
on the floor near the bathroom. She had a head laceration that
was bleeding profusely, bruises on her face, and a stab wound
below her left eye. There was a large amount of blood on the
bed. The victim was conscious, but in shock and crying. She
told those present that "[a] man came through the wall and raped
me." The victim was taken to the Nashoba Valley Medical Center
and later airlifted to Beth Israel Deaconess Medical Center
(BIDMC) in Boston.
b. The attack. The victim lived alone in the apartment.
She worked as a "spirit medium" and assisted living people with
4
connection "to deceased loved ones." She also offered
"spiritual counseling" and provided advice to those with
problems. Her advice at times involved "divine guidance," which
meant advice from "God's angels, spirit guides, [and] masters
like Jesus and Buddha."
During the early morning hours on the day of the attack,
the victim awoke to noises "coming through the wall." When the
noises got closer, she got up and saw a man, later identified as
the defendant, kneeling and opening drawers in a chest. The
victim screamed and was "frozen in fear." She retrieved a
crowbar she found on the floor, which she described as a
"yellowy metal rusty thing," and attempted to defend herself.
The defendant grabbed her hair, but the victim was unable to
bring herself to hit him with the crowbar and instead pushed it
under a nearby chest of drawers. The defendant threatened to
hit her if she looked at him, and he asked the victim for money.
As he continued to hold her hair, the victim crawled to her
wallet and gave him forty-four dollars in cash. The defendant
kept asking the victim if she had a boy friend; she did not
respond.
Holding both of the victim's wrists with one hand, the
defendant told her to take off her clothes. She said, "No, just
let me go." She "was so frozen in fear, [she] didn't know what
to do." The defendant took off his clothes and hers. He forced
5
her to "suck on his penis" and he threatened to hit her if she
looked at him. He "sucked . . . on [her] vagina" and told her
she was "beautiful." The defendant tied her legs to the
bedposts with shredded pieces of her clothing and vaginally
raped her with his penis. When the victim struggled to free
herself, the defendant got off her and began to get dressed. He
then covered her mouth and nose with his hand, which prevented
her from breathing. She attempted to "peel his fingers off,"
but soon lost consciousness. The last thing she remembered was
seeing the defendant raise the yellow crowbar over her and
striking her on her head (more than once) and she "was
completely out." The defendant beat and raped the victim with
the crowbar.
When the victim regained consciousness, she saw a pool of
blood next to her and she smelled smoke. The smoke was coming
from a box the defendant had stuck in a hole in the wall. She
dragged the flaming box into the bathtub and retrieved a fire
extinguisher from the kitchen. After reading the instructions,
she was able to use it to extinguish the fire. At some point,
the victim's landlady came to the door and had her son telephone
for an ambulance.
c. The victim's injuries. The extent of the victim's
injuries were as extreme as they were extraordinary. The wounds
to her head and face were so severe that she required plastic
6
surgery. Her perineum, i.e., her vagina and rectal areas, were
"completely macerated"; the usually thick band of tissue between
the vaginal canal and rectum was completely torn away. Her
"normal anatomy could not be identified." Dr. Christopher
Awetry, the victim's treating obstetrics and gynecological
physician at BIDMC, opined that the victim's injuries were not
caused by a knife, but instead by "an object that had tearing
capabilities, but also with a blunt side." With a reasonable
degree of medical certainty, Dr. Awetry opined that the victim's
injuries were consistent with having been inflicted by a
crowbar.
Part of the victim's treatment as a sexual assault victim
was the administration of an AIDS preventative medication.
However, the victim was allergic to the medication and developed
a dermatological manifestation referred to as Stevens Johnson
syndrome, which resulted in a chemical burn with swelling and
blistering over ninety-eight percent of her body. These
additional injuries were extremely painful and required her
admission to the burn unit at Brigham and Women's Hospital.
d. The hole in the wall. The defendant gained entry to
her apartment (no. 6) through a hole in the wall from a vacant,
adjacent apartment (no. 7). The former tenants of apartment no.
7 had moved out, but some furniture remained in the apartment.
The hole had been opened in the drywall between two studs. Paul
7
Zambella, a forensic scientist at the Massachusetts State police
crime laboratory, measured the hole and found it to be
approximately twelve and one-half inches wide by approximately
twenty-one inches in length.
Daniel Freedman, the landlady's son and the building's
maintenance man, was able to fit himself through the hole
between the two apartments. Freedman was approximately five
feet, eight inches tall and weighed 185 pounds. Detective Brian
Gill, the lead investigator, made a cardboard replica of the
hole with dimensions of twelve by eighteen inches based on his
measurements. Gill, who was five feet, eight inches tall and
weighed 230 pounds, was able to fit through the replica of the
hole. In April of 2006, the defendant was six feet tall and
weighed 190 pounds. By the time of trial in the summer of 2007,
the defendant appeared to have gained weight.
e. Identifying the defendant as the assailant. Eleanor
Lamb, the defendant's sister, lived across the street from the
defendant on West Street in Ayer in March of 2006. On the night
of March 8, 2006, some hours before the victim's attack in the
early morning of March 9, Lamb was drinking and socializing in
her apartment with Nicole Minkle, James Daniels, and Christopher
Hird. The defendant was present and drinking as well. He left
at approximately 10:30 P.M., but returned thirty minutes later.
When he returned, he told them the he had discovered a vacant
8
apartment with furniture left behind. The defendant asked if
anyone wanted any of the furniture; all declined, except Lamb.
At approximately midnight, the defendant and Lamb left her
apartment and walked for about two minutes before reaching the
apartment building. They entered with a key the defendant found
after he broke into the apartment through a window earlier in
the evening. Lamb took a big role of bubble wrap, the defendant
took a trash bag full of various items, and they both returned
to Lamb's apartment.
Upon their return, the defendant asked to borrow Lamb's
blue flashlight and a yellow crowbar that had previously
belonged to Lamb's former boy friend. Hird also saw the
defendant holding the yellow crowbar. On his way out the door,
the defendant stopped and poked his head back in and said,
"Don't worry, it's not like I'm going to hurt -- or kill
anybody." He was dressed in blue jeans, a flannel shirt, and a
dark-colored jacket. Lamb never saw the crowbar again after
lending it to the defendant, but she did find the flashlight in
her mailbox the next day.
The next morning, Lamb saw on the television news the
apartment building she and the defendant had been in the
previous evening. That evening, Lamb reported to the police
that the defendant had been in the building with her the night
9
before the attack.1 She showed the police the route they took to
the building and the door they entered.
After obtaining a search warrant for the defendant's
apartment, the police found a yellow crowbar under his bed.
After obtaining a second search warrant for the basement area of
the defendant's apartment building, the police found a dark-
colored jacket with chalky residue on it. They also found a
pair of blue jeans with white fragments and pieces of "wallboard
or plaster" in the left rear pocket. That same day, the police
also recovered, from the area of the hole between apartments no.
6 and no. 7, a piece of wallboard debris with yellow-colored
material on its surface.
f. Forensic evidence. Both the yellow crowbar and the
blue jeans had human blood on them. The blood on the blue jeans
had a deoxyribonucleic acid (DNA) profile of at least two
individuals. The major female profile matched the victim, and
the defendant was included as a potential contributor of the
minor profile based on a probability of one in 41,000 for a
randomly selected unrelated individual in the Caucasian
population. The yellow crowbar, which the police seized from
under the defendant's bed, also had a DNA mixture of at least
1
Lamb admitted that she initially lied to the police about
being in the building herself, but then admitted accompanying
the defendant inside.
10
two individuals; the defendant was excluded as a contributor,
but the victim matched the major female profile.
A forensic review of the evidence revealed that the "two
types of yellow paint found on the wallboard [between apartments
no. 6 and no. 7] were consistent in color, microscopic
appearance in spectrophotometric properties with the two shades
of yellow paint on the [crowbar]." Also, the wallboard between
the apartments was consistent in "color, microscopic appearance,
and instrumental properties" with the pieces of wallboard found
in the back pocket of the blue jeans found the basement of the
defendant's apartment building.
g. The photographic array. At the burn unit within
Brigham and Women's Hospital, Detective Gill showed the victim a
photographic array. The victim appeared frail, was shaking, and
cried throughout the interview. When the detective showed her
an array that contained the defendant's photograph, she excluded
the defendant's photograph as her assailant. When she viewed
the photograph a second time, she said, "Definitely not this
one." At trial, the victim explained that she was very
disoriented from the medications she was on at the time she was
shown the photographs and, as a result, could not "pinpoint"
anyone.
The victim described her attacker to the police as
Caucasian with blonde or brown hair. He was wearing pants, but
11
not blue jeans. She said he was between five feet, six inches
and five feet, nine inches in height, but probably five feet,
eight inches or five feet, nine inches. She added that he had a
receding hairline, a medium to small build but with a fat frame,
and "no jaw line, no chin." The victim characterized him as a
"coward from all angles" with a "cocky attitude."
2. Discussion. a. Extrasensory recognition. The
defendant claims that the judge improperly permitted the victim
to make an in-court identification of the defendant. More
specifically, the prosecutor asked the victim if she recognized
her attacker in the court room. The victim testified that she
might recognize him if he were to stand. With defense counsel's
express permission, the judge ordered the defendant to stand.
The judge permitted the victim to leave the witness stand and to
walk closer to the defendant. As she faced him, she said,
"Yes." When the victim returned to the witness stand, the
prosecutor asked her what she meant when she said, "Yes." She
replied, "That is the person. I can recognize his energy
because of my trade of work." Despite the defendant's repeated
claim on appeal that he objected to this testimony,2 he made no
objection and no motion to strike.
2
On three occasions in the defendant's brief, appellate
counsel states that this testimony was admitted over objection.
These statements are directly contradicted by the transcript.
Misrepresentation is neither advocacy nor ethical. See
12
The defendant also claims that the matter was preserved
based on statements counsel made to the judge during the charge
conference regarding an identification instruction. During this
discussion, counsel maintained that recognition by energy is not
an identification. He did not belatedly object to the admission
of the victim's testimony. Even if he had objected, it would
have been untimely. We have a contemporaneous objection rule,
not a retroactive objection rule. "'Order in the administration
of criminal justice requires that if a defendant is aggrieved by
what transpires during his trial,' he must assert a timely
objection or claim of error." Commonwealth v. Pisa, 384 Mass.
362, 366 (1981), quoting from Commonwealth v. Stout, 356 Mass.
237, 243 (1969). See Mass.R.Crim.P. 22, 378 Mass. 892 (1979).
Because the defendant's claim was not preserved, we review to
determine whether an error occurred and, if so, whether that
error created a substantial risk of a miscarriage of justice.
See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
To determine whether the evidence of the victim's
recognition of the defendant by his "energy" created a
substantial risk of a miscarriage of justice, and keeping in
Mass.R.Prof.C. 3.3(a)(1), 426 Mass. 1383 (1998) ("A lawyer shall
not knowingly . . . make a false statement of material fact or
law to a tribunal"). After the Commonwealth's brief brought
these misrepresentations to our attention, appellate counsel
corrected her misstatements in her reply brief.
13
mind that "[e]rrors of this magnitude are extraordinary events
and relief is seldom granted," Commonwealth v. Randolph, 438
Mass. 290, 297 (2002), we ask four questions: "(1) Was there
error? (2) Was the defendant prejudiced by the error? (3)
Considering the error in the context of the entire trial, would
it be reasonable to conclude that the error materially
influenced the verdict? (4) May we infer from the record that
counsel's failure to object or raise a claim of error at an
earlier date was not a reasonable tactical decision?"
(Citations omitted.) Id. at 298. "Only if the answer to all
four questions is 'yes,' may we grant relief." Ibid. See
Commonwealth v. Russell, 439 Mass. 340, 345 (2003).
The defendant claims that in light of Commonwealth v.
Crayton, 470 Mass. 228 (2014), and Commonwealth v. Collins, 470
Mass. 255 (2014), the victim's energy recognition testimony
requires his conviction be reversed. We disagree. In these
cases, the Supreme Judicial Court held that "[w]here an
eyewitness has not participated before trial in an
identification procedure, we shall treat the in-court
identification as an in-court showup, and shall admit it in
evidence only where there is 'good reason' for its admission."
Commonwealth v. Crayton, supra at 241. The same rule applies
where the eyewitness has not made an unequivocal positive
identification of the defendant before trial. See Commonwealth
14
v. Collins, supra at 265. However, even assuming the victim is
an "eyewitness," the defendant fails to note that when the
Supreme Judicial Court announced the above rules, it made them
applicable only to trials that commenced after the issuance of
those opinions, which occurred in December of 2014. The
defendant was tried in 2007.
The defendant also claims the energy recognition evidence
should have been excluded under Daubert v. Merrill Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Commonwealth v.
Lanigan, 419 Mass. 15 (1994). If those principles applied in
the circumstances of this case,3 the defendant's argument might
have had some force had he moved to exclude the evidence on
these grounds, but he did not. Because this claim is being
raised for the first time on appeal, it is waived. Newell v.
Department of Mental Retardation, 446 Mass. 286, 298 n.27
(2006); Driscoll v. Providence Mut. Fire Ins. Co., 69 Mass. App.
Ct. 341, 342 n.3 (2007). See Commonwealth v. Crouse, 447 Mass.
558, 570 n.11 (2006) ("To the extent that the defendant's claim
rests on the judge's failure to assume the role of gatekeeper to
preclude the introduction of 'junk science' evidence, it is too
late for the defendant to request a Lanigan hearing").
3
The Daubert/Lanigan standard is a mechanism designed to
test the admissibility of scientific expert opinion, not
testimony of a lay witness like the victim. See Commonwealth v.
Lanigan, supra at 25.
15
Although we reject the above claims, the gravamen of the
defendant's argument is that it was error to permit the victim,
by employment of her "sixth sense" or through extra sensory
perception (ESP), to recognize the defendant as her attacker.
We agree. "In general, a witness bases any identification [she]
makes on [her] perception through the use of [her] senses.
Usually the witness identifies an offender by the sense of sight
-- but this is not necessarily so, and [she] may use other
senses." Commonwealth v. Franklin, 465 Mass. 895, 910 n.24
(2013) (quotation omitted). However, when our case law speaks
of "other senses," it was meant to limit those available for
identification to the five found in the natural world. Indeed,
by definition, ESP or a "sixth sense," is beyond the corporeal
or numerical senses of convention. The evidence of the victim's
supernatural recognition of the defendant as her attacker should
not have been permitted.4
Although we conclude there was error, when we consider the
error in the context of the entire trial, it would not be
4
At oral argument, appellate counsel likened the victim's
energy recognition testimony to spectral evidence, which was
used to convict the defendants at the Salem witch trials. We
disagree. "Spectral evidence" refers to witness testimony that
the accused person's spirit or spectral shape appeared to the
witness. See Hoffer, The Salem Witchcraft Trials, A Legal
History 78-79 (1997); Starkey, The Devil in Massachusetts 54, 93
(1949). Here, while the victim's energy recognition testimony
was improper, it was not generated from an apparitional
appearance she had of the defendant.
16
reasonable to conclude that the error materially influenced the
verdict. See Commonwealth v. Randolph, 438 Mass. at 299-300.
While the victim did not make a photographic identification, and
discounted the actual photographs of the defendant, the
Commonwealth offered compelling evidence that identified the
defendant as the victim's assailant and rapist.
At trial, the Commonwealth's key witness was the
defendant's sister, Eleanor Lamb, who was with the defendant on
the night of the attack. Lamb joined the defendant and stole
items from the vacant apartment (no.7) adjacent to the victim's
apartment (no. 6). Lamb was the owner of the yellow crowbar
that the defendant borrowed on the night of attack. Lamb later
told the police of the events of the night. Two other
witnesses, Christopher Hird and Nicole Minkle, corroborated
Lamb's claim that the defendant told the group that he had found
the vacant apartment with furniture in it. Hird also saw the
yellow crowbar in the defendant's hand at Lamb's apartment.
The forensic evidence against the defendant was even more
compelling. Police found a yellow crowbar matching the
description given by Lamb and Hird under the defendant's bed.
Forensic testing of the yellow crowbar revealed the presence of
the victim's DNA. The paint on the crowbar was consistent with
yellow marks left on the wallboard surrounding the hole between
the two apartments. There was also evidence that two different
17
men (Daniel Freedman and Detective Brian Gill) of builds similar
to that of the defendant were able to fit through the hole (or a
replica of it) between the apartments.
Also, Lamb testified that on the night of the attack, the
defendant was dressed in blue jeans, a flannel shirt, and a
dark-colored jacket. In the defendant's basement, the police
found blue jeans with wallboard fragments in one of the pockets.
The blue jeans also had human blood on them. A forensic
analysis of the blood stain showed that the blood contained a
mixture of at least two individuals. The victim's DNA profile
matched the major female contributor, and the defendant was
included as a potential contributor of the minor profile.
Although the judge's decision on the Commonwealth's motion
to reconsider the order on the defendant's second motion for new
trial characterizes the victim's method of recognizing the
defendant as "extremely powerful," she also determined that the
other evidence against the defendant, cataloged above, "was very
powerful, if not overwhelming." Moreover, during the trial, the
judge indicated that the jury might completely disregard the
victim's "energy" testimony or simply reject it as ridiculous.
In any event, our determination whether the error materially
18
influenced the verdict is not contingent upon how the judge
viewed the evidence.5
Finally, for the same reason that the judge concluded the
jury may view the energy evidence as ridiculous, we can infer
that counsel's not objecting to its admission was a tactical
decision that was not manifestly unreasonable.6 Indeed, during
counsel's cross-examination of the victim, he established that
even though the victim could recognize the defendant's energy
"imprint," she failed to recognize his photographs and said they
were not her assailant. Counsel could easily have concluded
that the energy testimony seriously detracted from the victim's
credibility, and he chose to leave it unchallenged and instead
focused on her inability to make a photographic identification.
Because we do not answer all four of the Randolph inquires in
the affirmative, the defendant has failed to establish that the
error created a substantial risk that justice miscarried. See
Commonwealth v. Randolph, 438 Mass. at 298. See also
Commonwealth v. Dresser, 71 Mass. App. Ct. 454, 458 n.10 (2008)
5
For this same reason, there was no over-all effect to the
judge's mistaken finding that the defendant was the only tenant
who had access to the area where the blue jeans were found.
6
The defendant admits this in his reply brief, where he
states that "[n]ot highlighting such an off-the-wall part of the
trial testimony by objecting to it when it occurred was not a
manifestly unreasonable strategy at that moment." Indeed, no
claim is made by the defendant here that counsel's failure to
object amounted to ineffective assistance of counsel.
19
(defendant's burden to establish existence of substantial risk
of miscarriage of justice).
b. The prosecutor's closing argument. The defendant
claims for the first time on appeal that the prosecutor vouched
for the victim's energy identification in her closing argument.
The challenged portion of the prosecutor's argument is as
follows:
"She certainly did say she wanted to study that face.
No doubt she wanted to. No doubt she wishes that she could
tell you exactly what that person looked like in her
bedroom, but she can't do that.
"You think about the trauma that she went through, the
physical pain, the injuries to her, the raping, everything.
And again and again, 'Don't look at me. Don't look at me.'
Good thing he said that, because she didn't get to look at
him. She didn't get to look at him. And all she can tell
you when she was in the courtroom whether she could
identify him was his energy.
"'That's the way I operate. You people don't
understand.' That's him; that's his energy. And you can
give that whatever weight you deem necessary for that sixth
sense of hers that she uses, saying, 'That's him; that's
his energy.' Well, you might remember one of her positive
expressions: I'm determined to move into my next perfect
living space in New Hampshire by March seventh, 2006.
Must. She certainly got that energy right. She just
didn't get out in time.
"March seventh, the day before this happens? That's
her energy there, and her energy was in here. If you don't
accept her identification of him through those senses, you
don't have to. You can put it aside. You can disregard
it, because you have enough evidence in this case to
identify him as the perpetrator."
Contrary to the defendant's claim, the energy testimony was
not the "cornerstone" of the Commonwealth's case. The
20
prosecutor did note the victim's energy testimony, but also told
the jury they did not have to credit that testimony because
there was so much other evidence to identify the defendant as
the perpetrator. This did not constitute improper vouching.
However, just as the evidence of an extrasensory
identification should not have been admitted, this argument was
improper. The Commonwealth should not have been urging jurors
to give the victim's extrasensory energy recognition "whatever
weight [they] deem necessary," or arguing that her ESP had a
track record of reliability. Nonetheless, defense counsel did
not object to this portion the prosecutor's closing argument.
Again, we cannot say on this record that not objecting was a
manifestly unreasonable tactical decision. In fact, there is no
claim before us that it amounted to ineffective assistance of
counsel. In all the facts and circumstances here, this error
did not create a substantial risk of a miscarriage of justice.
See Commonwealth v. Roderiques, 462 Mass. 415, 427 (2012)
("[O]ne factor to be considered in determining whether an error
has created a substantial risk of a miscarriage of justice is
whether defense counsel's failure to object was simply a
reasonable tactical decision").
c. Identification instruction. The defendant claims that
the judge erred in her jury instruction on identification by
adding language to the standard instruction, which permitted the
21
jury to consider whether a witness had an adequate opportunity
to "ascertain [the offender's] demeanor," and put a "judicial
imprimatur of approval" on the victim's putative identification
of the defendant. We disagree. At trial, the defendant
objected, but on different grounds. The defendant objected
based on his belief that this was an improper reference to the
victim's energy testimony because he did not "know if
ascertaining a demeanor is an identification." The defendant
did not claim the instruction provided judicial approval of the
victim's energy recognition testimony.7 In any event, there was
no error.
Our review of claimed jury instruction errors requires us
to "evaluate the instruction as whole, looking for the
interpretation a reasonable juror would place on the judge's
words." Commonwealth v. Trapp, 423 Mass. 356, 361, cert.
denied, 519 U.S. 1045 (1996). "We do not consider bits and
pieces of the instruction in isolation." Commonwealth v. Young,
461 Mass. 198, 207 (2012).
The judge instructed as follows:
"When evaluating a witness'[s] identification, you may
consider many factors, including the circumstances
7
At trial, the defendant sought the standard instruction on
identification, even though the only identification of the
defendant by the victim was her identification based on the
defendant's "energy." No argument is raised here that the jury
should not have been instructed on identification.
22
surrounding the encounter between the witness and the
offender, and whether under those circumstances, the
witness had an adequate opportunity to see the offender, to
hear his voice, or to ascertain his demeanor."
The addition of the concluding phrase regarding demeanor was not
prejudicial and, as the judge specifically noted at the charge
conference, was "separate and apart from the [victim's] energy"
reference. Also, as the judge noted, the jury heard references
to demeanor evidence when the victim told the police that her
attacker had a "cocky attitude" and was "a coward from all
angles." These were references to the behavior of the attacker,
not to his energy, and in no manner bolstered the victim's
credibility. When the judge's jury instructions are viewed as a
whole, no reasonable juror could have improperly interpreted the
references to demeanor as the defendant now suggests.
d. New trial motions. The defendant's first motion for
new trial was denied in 2009. In that motion, the defendant
claimed he received ineffective assistance of trial counsel for
a number of reasons, including counsel's failure to contest the
defendant's ability to fit through the hole in the wall that led
to the victim's apartment.8 In 2012, the defendant filed a
second motion for new trial in which he claimed he was denied
8
The defendant filed a notice of appeal from the denial of
his first motion for new trial, but he does not raise any claim
related to it on appeal.
23
his right to a public trial,9 and that he received ineffective
assistance of trial and first appellate counsel based on their
failure to establish that he could not fit through the hole in
the wall or, in the alternative, that expert evidence of the
hole's dimensions was newly discovered. On appeal, the
defendant claims that the motion judge, who was the also trial
judge, abused her discretion by denying his second motion for
new trial based on ineffective assistance. We disagree for
several reasons.
First, under the doctrine of direct estoppel, a defendant
is barred from seeking review of claims "actually litigated" and
decided against him. Commonwealth v. Rodriguez, 443 Mass. 707,
710 (2005). Here, the issue raised in the defendant's first
motion for new trial, i.e., the claim of ineffective assistance
related to the hole in the wall, was actually litigated and
determined in that motion, it was an essential issue in the
case, and the defendant had an opportunity to obtain review of
the determination of his motion for new trial. See ibid. As
such, direct estoppel operates as a bar to the defendant's
attempt, in his second motion for a new trial, to relitigate his
ineffective assistance claim.
9
The defendant's closed court room claim is not before us
on appeal.
24
Second, "[a] defendant seeking a new trial on the basis of
newly discovered evidence must establish both that the evidence
is newly discovered and that it casts real doubt on the justice
of the conviction." Commonwealth v. Pike, 431 Mass. 212, 218
(2000). "A defendant seeking a new trial on the ground of newly
discovered evidence must first establish that the evidence was
not discoverable at the time of trial despite the due diligence
of the defendant or defense counsel." Commonwealth v. Sena, 441
Mass. 822, 830 (2004). Moreover, the defendant must establish
that the evidence in question was "unknown to the defendant or
his counsel and not reasonably discoverable by them at the time
of trial . . . . The defendant has the burden of proving that
reasonable pretrial diligence would not have uncovered the
evidence." Commonwealth v. Grace, 397 Mass. 303, 306 (1986).
In his brief, the defendant claims that the judge ruled
that the proffered expert testimony was, among other things,
"newly discovered." The judge did not so rule.10 Rather, the
judge assumed for purposes of her resolution of the motion that
the evidence was newly discovered. We need not, and do not,
make the same assumption. The defendant has failed to
demonstrate that reasonable pretrial diligence would not have
uncovered the analyses in the expert's affidavits. There was no
10
This misrepresentation was repeated in the defendant's
reply brief.
25
showing that the technology used to measure the hole's
dimensions and the defendant's chest did not exist at the time
of trial. See Commonwealth v. Shuman, 445 Mass. 268, 275
(2005). Indeed, measuring is not on the vanguard of scientific
techniques.
Third, even if the evidence were newly discovered, it was
not an abuse of the judge's discretion to conclude that it did
not cast real doubt on the justice of the defendant's
convictions. See Commonwealth v. Grace, supra. Nor was it an
abuse of discretion for the judge, employing the lens of
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), to have
concluded that it would not have "accomplished something
material for the defense." Commonwealth v. Satterfield, 373
Mass. 109, 115 (1977).11
The expert's proffered measurements were contradictory as
to the hole's narrowest point, and made the faulty assumption
that the widest part of the defendant's chest would have to pass
through the narrowest part of the hole. Also, the jury had
heard testimony from two witnesses who were similar in weight to
the defendant, but shorter, who were able to fit through the
11
Also, contrary to the defendant's reply brief, the judge
did not find counsel to be ineffective. Instead, the judge held
that the first prong of Commonwealth v. Saferian, 366 Mass. at
96, had been met, but the defendant failed to establish
prejudice under the second prong.
26
hole or through a replica of the hole constructed from its
dimensions. Finally, when these facts are added to the
overwhelming evidence of the defendant's identification as the
attacker cataloged above in section 1.e, the denial of the
motion was proper and not an abuse of discretion.
e. Attempt to burn personal property. The defendant
claims his conviction of attempt to burn personal property, in
violation of G. L. c. 266, § 5A, was not supported by sufficient
evidence because the items in question were actually burned. We
agree.
When evaluating sufficiency, the evidence must be viewed
in the light most favorable to the Commonwealth with specific
reference to the substantive elements of the offense. See
Jackson v. Virginia, 443 U.S. 307, 324 n.16 (1979); Commonwealth
v. Latimore, 378 Mass. 671, 677-678 (1979). In this case, to
establish the defendant's guilt of attempting to burn personal
property in violation of G. L. c. 266, § 5A, the Commonwealth
was required to prove that (1) the defendant attempted to set
fire to property, (2) the defendant did so wilfully, and (3) the
defendant did so maliciously, i.e., with an unlawful motive and
without excuse.
Relative to the attempt, the defendant claims that because
he actually set fire to the box, it cannot be an attempt. We
agree. In general, to prove an attempt under G. L. c. 274, § 6,
27
the elements are (1) the intent to commit the substantive crime,
(2) an overt act in furtherance of commission of the substantive
crime, and (3) nonachievement of the substantive crime -- that
is, no actual completion of the substantive crime but, rather,
an attempt ending before the substantive crime can be fulfilled.
See Commonwealth v. Ortiz, 408 Mass. 463, 470 (1990);
Commonwealth v. Bell, 455 Mass. 408, 412 (2009). Thus, under
the general attempt statute, the completed substantive offense
nullifies the existence of an attempt. Under G. L. c. 266,
§ 5A, the Legislature included a separate definition of what
constituted an attempt under § 5A. It states:
"The placing or distributing of any flammable, explosive or
combustible material or substance or any device in or
against any building, structure or property mentioned in
the foregoing sections in an arrangement or preparation
with intent eventually to wilfully and maliciously set fire
to or burn such building, structure or property, or to
procure the setting fire to or burning of the same shall,
for the purposes of this section, constitute an attempt to
burn such building, structure or property."
While this dedicated definition of attempt for purposes of arson
relaxed the stricter common-law requirements set forth in
Commonwealth v. Peaslee, 177 Mass. 267, 271-272 (1901), and
Commonwealth v. Ali, 7 Mass. App. Ct. 120, 123 (1979), it did
not expand the understanding of an attempt to be more than an
inchoate crime. Because the evidence, even in the light most
favorable to the Commonwealth, showed the box of items was
28
actually ablaze before the victim extinguished it, the defendant
achieved the substantive crime and no actual attempt occurred.12
f. Duplicative convictions. The defendant claims his
conviction of assault and battery by means of a dangerous weapon
causing serious bodily injury is a lesser included offense of
his conviction of mayhem (second theory). The Commonwealth
concedes the issue, and we agree. See Commonwealth v. Forbes,
86 Mass. App. Ct. 197, 202-203 (2014).
3. The Commonwealth's appeal. The judge allowed the
defendant's motion, pursuant to G. L. c. 278A, § 7, for
postconviction DNA testing. On appeal, the Commonwealth claims
the motion should have been denied. We affirm.
The Commonwealth claims the judge erred in concluding that
the defendant was entitled to postconviction DNA testing under
G. L. c. 278A, where there was no "reasonable potential" that
testing would result in evidence material to the identification
of the perpetrator of the crime. We disagree. Under G. L.
c. 278A, § 7(b)(4), inserted by St. 2012, c. 38, "[t]he court
shall allow the requested scientific or forensic analysis" where
the defendant demonstrates by a preponderance of the evidence
"that the requested analysis has the potential to result in
evidence that is material to the moving party's identification
12
Given the result we reach, we need not address the
defendant's claim that the property at issue was not identified.
29
as the perpetrator of the crime in the underlying case." "We
review questions of statutory interpretation de novo."
Commonwealth v. Wade, 467 Mass. 496, 501 (2014). As the Supreme
Judicial Court has held, "potential" within this framework is
not reasonable potential: "The Legislature's use of the word
'potential' in § 7(b)(4) suggests an awareness of the fact that
the requested forensic analysis may not produce the desired
evidence, but such a consequence should not be an impediment to
analysis in the first instance." Commonwealth v. Clark, 472
Mass. 120, 135-136 (2015).
Here, the defendant established that DNA testing of the
victim's finger swabs has potential under G. L. c. 278A,
§ 7(b)(4), to result in material identification evidence.
During trial, the victim recounted her efforts to "peel" and
"pull" the defendant's fingers off her nose and mouth. Even if
it is "highly unlikely" that DNA testing will yield any
probative results, the victim's testimony does suggest the
potential that her assailant's DNA may have been on her hands
and that the finger swabs could therefore produce material
evidence. See Commonwealth v. Clark, supra at 135 (request for
DNA analysis "has the 'potential' to result in evidence" where
victim testified that defendant's knife may contain his blood or
skin cells after victim attempted to stab him).
30
The Commonwealth also asserts that the defendant fails to
satisfy G. L. c. 278A, § 3(b)(5), which is required under
§ 7(b)(3), because a reasonably effective attorney would not
have sought DNA analysis of the victim's finger swabs. We
disagree.
Under G. L. c. 278A, § 7(b)(3), the defendant must
demonstrate by a preponderance that the evidence or biological
material has not been subject to the analysis requested under
G. L. c. 278A for one of five enumerated reasons stated in
§ 3(b)(5). The defendant alleges that DNA testing did not occur
in this case because his trial counsel failed to request testing
and a "reasonably effective attorney would have sought [DNA]
analysis." G. L. c. 278A, § 3(b)(5)(iv). For the purposes of
G. L. c. 278A, the defendant must demonstrate that "'a'
reasonably effective attorney would have sought the requested
analysis, not that every reasonably effective attorney would
have done so." Commonwealth v. Wade, supra at 511. In this
instance, the defendant's trial counsel decided to forgo DNA
analysis and instead pursued a different trial strategy.
Because G. L. c. 278A does not apply the Saferian ineffective
assistance of counsel framework to evaluate whether an attorney
is reasonably effective, the fact that trial counsel followed
one trial strategy where another reasonably effective attorney
31
might have sought DNA testing is enough to satisfy
§ 3(b)(5)(iv).
Finally, the Commonwealth claims that we should consider
the strength of its case in determining whether the defendant
demonstrated the necessary G. L. c. 278A, § 7, factors by a
preponderance of the evidence. We disagree. Despite the cost
of a DNA analysis and the finite resources of the Commonwealth,
"the Legislature intended to permit access to DNA testing
'regardless of the presence of overwhelming evidence of guilt in
the underlying trial.'" Commonwealth v. Clark, supra at 136,
quoting from Commonwealth v. Wade, supra at 511. As discussed
above, the defendant has demonstrated that a reasonable attorney
would have sought DNA analysis and that such analysis has the
"potential" to result in evidence that is material to his
identification as the perpetrator of the crime. Because the
Legislature enacted G. L. c. 278A with the intent to remedy the
wrongful convictions of factually innocent persons, we construe
the statute and its language "in a manner that is generous to
the moving party." Commonwealth v. Clark, supra. We therefore
afford the defendant the opportunity for testing despite the
strength of the Commonwealth's case, and our affirmance of his
convictions.
4. Conclusion. The order denying the defendant's second
motion for a new trial is affirmed. On the indictments charging
32
the defendant with assault and battery by means of a dangerous
weapon causing serious bodily injury, and attempt to burn
personal property, the judgments are reversed, the verdicts are
set aside, and those indictments are to be dismissed. The
remaining judgments of conviction are affirmed, the sentences
thereon are vacated, and the case is remanded for resentencing
consistent with this opinion. The order allowing the
defendant's motion for postconviction DNA testing is affirmed.
So ordered.